Originally published March 31, 2005
The Direct Marketing Association (DMA) asked the staff of the Federal Trade Commission (FTC) for an opinion regarding who is considered to be the "sender" of a commercial electronic mail message under the CAN-SPAM Act, Pub. L. No. 108-187, when a single message consists of one or more advertisements from different companies and the recipient has provided permission to receive the e-mail message.
The Commission staff has issued an opinion indicating that, "when a recipient affirmatively consents to receive commercial e-mail messages after having received clear and conspicuous disclosure that the ensuing e-mail messages may contain advertising from other sellers, those additional sellers should not be considered "senders"' for purposes of CAN-SPAM compliance and enforcement, subject to several conditions set forth in more detail below.1
DMA Hypothetical
Specifically, The DMA had requested clarification regarding the following fact pattern:
"(1)the recipient has provided permission to receive the e-mail;
(2) the e-mail message contains one or more advertisements from a company other than the one to which the recipient provided consent to send the e-mail;
(3) the entity receiving permission follows the requirements of the CAN-SPAM Act for the e-mail, including offering and honoring a request to unsubscribe from further commercial e-mail; and
(4) the advertiser does not know who specifically will receive the e-mail, but the advertiser does know its advertisements will be included in e-mail to recipients who have provided general interest in receiving such e-mail."
The DMA asked the Commission for clarification that the sender of the message would be the entity that received permission from the recipient to transmit the message.
Staff Opinion and Conditions
The staff indicated that there would only be one "sender" under the circumstances described by The DMA provided that certain conditions are met:
(1) At least one of the sellers who contributes commercial content to the e-mail message must receive the recipient's affirmative consent, after clear and conspicuous disclosure that additional sellers may contribute advertising content to subsequent messages arriving from that consent.
(2) The seller that has received the recipient's affirmative consent must satisfy the Act's definition of "sender"—"a person who initiates such a message and whose product, service, or Internet web site is advertised or promoted by the message". This opinion does not apply to scenarios where the party who receives affirmative consent to receive e-mail messages is not a "sender".
In addition, the staff clarified that it believes that multiple advertisers contributing to a single message are still "initiators" of the e-mail. A person "initiates" a message under the Act if that person "procures" the initiation of a message. The term "procure" is defined under the Act as "intentionally to pay or provide other consideration to, or induce, another person to initiate [a commercial e-mail] message on one's behalf". The Commission staff indicated its belief that "given the comprehensive breadth of this definition, in staff's opinion, there is little, if any, possibility that persons seeking to convey their advertisements in a single e-mail would not be considered 'procurers"' and, thus, presumably initiators.
Therefore, while each seller would not be a sender if the above-stated conditions are followed, each seller would be an initiator and would be required to "ensure that commercial e-mail messages they initiate do not contain false or misleading transmission information or deceptive subject headings and do contain the disclosures required by the Act, including an opt-out mechanism that will be honored by the single seller who has been designated the message's "sender". Those sellers who are not the designated "sender" "would not be required to provide their own opt-out mechanism or valid physical postal address, or process and honor opt-out requests".
Staff Suggestions for Best Practices in E-Mail with Multiple Sellers
The Commission staff took this opportunity to set forth what it believes are "best practices" so that multiple parties using a single e-mail message to advertise their various products, services, or web sites will take appropriate steps to ensure that this activity does not run counter to consenting recipients' expectations. These best practices are not rules, nor are they interpretations of the CAN-SPAM Act or other laws administered by the FTC. They do, however, set forth important guidance as to best practices in this area, that businesses, if and where applicable, should strongly consider implementing.
- Provide the sender's name in the message's "from" line. The staff indicated in the letter that, "providing the sender's name in the 'From' line gives recipients a clear opportunity at the outset to recognize messages that they have consented to receive and that provide requested content".
- The list of e-mail addresses to which the message will be sent is determined by the sender. The staff indicated that the other best practice would be that the designated "sender" provides the list of recipients or otherwise determines who will receive the message. The rationale for this best practice is that it will minimize the likelihood that the "expectations of recipients may be subverted by receipt of unwanted commercial e-mail messages."
We expect the Commission to further address these and similar issues in upcoming rulemakings. We will provide continuing updates on developments.
Endnote
1 The FTC letter stated that the opinions expressed in response to The DMA's request "are those of Commission staff only and are not attributable to, nor binding on, the Commission itself or any individual Commissioner with respect to DMA or any other party".
-This article is intended to provide information on recent legal developments. It should not be construed as legal advice or legal opinion on specific facts. Pursuant to applicable Rules of Professional Conduct, it may constitute advertising.